Letsa E. Kinsley v. Ralph D. Kinsley

• Court: Court of Appeals of Virginia
• Decided: October 17, 1995
• Docket: 2507944
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judge Willis and Senior Judge Hodges Argued at Alexandria, Virginia

LETSA E. KINSLEY

v. Record No. 2507-94-4 MEMORANDUM OPINION * BY CHIEF JUDGE NORMAN K. MOON RALPH D. KINSLEY OCTOBER 17, 1995

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Benjamin N. A. Kendrick, Judge

John M. DiJoseph (Sattler & DiJoseph, on briefs), for appellant.

Thomas K. Plofchan, Jr., for appellee.

The judgment of the trial court is affirmed in part,

reversed in part, and remanded to the trial court for further

proceedings for the following reasons:

(1) The trial court did not err in refusing to continue the

civil contempt hearing in order for appellant to obtain counsel.

The key components of due process are notice and an opportunity

to be heard. Moore v. Smith, 177 Va. 621, 626, 15 S.E.2d 48, 49

(1941). Where a party has the opportunity to present testimony

but chooses not to do so, there is no denial of due process.

Venable v. Venable, 2 Va. App. 178, 182, 342 S.E.2d 646, 649

(1986). Appellant was given a month's notice of the hearing.

The notice informed her that the hearing would address her

liability for the bank note, including accumulated interest.

Because appellant was dilatory in her efforts to obtain an * Pursuant to Code § 17-116.010 this opinion is not designated for publication. attorney, there was no abuse of discretion by the trial court in

refusing to continue the case. Autry v. Bryan, 224 Va. 451, 297

S.E.2d 690 (1982).

(2) The court did not err in deciding that the doctrine of

res judicata did not bar appellee from seeking indemnity from

appellant for any sum he had to pay on the note that his wife had

been ordered to pay.

Collateral estoppel applies to the same issue litigated in a

different cause of action. Collateral estoppel precludes parties

from raising an issue that was actually litigated and essential

to a valid and final personal judgment in the earlier cause of

action. Bates v. Devers, 214 Va. 667, 671, 202 S.E.2d 917, 921

(1974). The party asserting collateral estoppel has the burden

of proving by the preponderance of the evidence that the precise

issue he seeks to preclude was raised and determined in the first

action. Slagle v. Slagle, 11 Va. App. 341, 344, 398 S.E.2d 346,

348 (1990).

The only direct evidence of the action taken by the district

court on the cross claims is the "Case Disposition," which

indicated that both of the cross claims were "dismissed." The

appellant claims that this constituted a judgment that the

parties were jointly responsible for the debt under the property

agreement. In order to make that conclusion on this record, we

must so speculate, which we may not do. Therefore, the appellant

has not met her burden of proof.

(3) The court determined, based on the petition and the - 2 - prior orders in the case, that the loan was the appellant's

responsibility. While the agreement and the prior orders are not

as clear as they might be, this determination was not plainly

wrong. Because the appellant failed to pay the loan, the court

awarded the appellee damages of $11,414.58, the amount due on the

bank judgment against the parties as of the date of the hearing.

"The measure of the court's power in civil contempt cases is

determined by the requirements of full remedial relief." McComb v. Jacksonville Paper Co., 336 U.S. 187, 193 (1949). Such relief

includes damages. As the Virginia Supreme Court has stated, "In

appropriate cases the violator may be punished . . . by an award

of damages against him in favor of the injured party sufficient

to indemnify him for the pecuniary loss occasioned to him . . .

." Deeds v. Gilmer, 162 Va. 157, 262, 174 S.E. 37, 79 (1934);

Leisge v. Leisge, 224 Va. 303, 308-09, 296 S.E.2d 538, 541

(1982).

The relief ordered by the circuit court goes considerably

beyond indemnification. The record does not show that appellee

has sustained damages in the amount awarded. It permits the

appellee to recover from the appellant speculative future

damages. The bank could also institute proceedings against the

appellant, which could result in her paying more than she owes.

Because the court erred in fixing and awarding excessive

damages, the monetary damages judgment will be remanded for a new

hearing on that issue.

(4) Because the agreement called for both parties to be - 3 - responsible for their own attorney's fees, the court erred in

ordering the wife to pay the husband's attorney's fees. Code

§ 20-109; see Sanford v. Sanford, 19 Va. App. 241, 505 S.E.2d 185

(1994).

(5) Because the notice did not alert appellant that her

property was subject to attachment for such damages as might be

awarded and because the record does not support a finding that a

grounds for attachment, Code § 8.01-534, existed, so much of the

judgment as pertains to the seizure and attachment of appellant's

property is likewise reversed. Affirmed in part, reversed in part, and remanded.

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